Frierson v. Ojeda

Filing 52

ORDER GRANTING 44 Defendant's Motion to Modify Scheduling Order to Extend Dispositive Motions Deadline signed by Magistrate Judge Gary S. Austin on 10/13/2016. Dispositive Motions Deadline: 12/15/2016. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAVELL FRIERSON, 12 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO MODIFY SCHEDULING ORDER TO EXTEND DISPOSITIVE MOTIONS DEADLINE (ECF No. 44.) Defendant. New Dispositive Motions Deadline: December 15, 2016 13 vs. 14 1:14-cv-00553-DAD-GSA-PC OJEDA, 15 16 17 18 19 I. BACKGROUND 20 Lavell Frierson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds with Plaintiff’s 22 initial Complaint, filed on April 18, 2014, against defendant Correctional Officer U. Ojeda 23 (“Defendant”) on Plaintiff’s Eighth Amendment Claim arising out of the placement of a 24 cellmate in Plaintiff’s cell. This case is scheduled for a settlement conference on November 10, 25 2016 at 1:00 p.m. before Magistrate Judge Kendall J. Newman at the U. S. District Court in 26 Sacramento, California. (ECF No. 34.) 27 28 1 1 On December 2, 2015, the Court issued a discovery and scheduling order setting out 2 case deadlines, including deadlines of August 2, 2016 for completion of discovery and October 3 11, 2016 for the filing of dispositive motions. (ECF No. 25.) 4 On August 31, 2016, Defendant filed a motion to extend the deadline for filing 5 dispositive motions. (ECF No. 44.) Plaintiff has not opposed the motion. 6 II. MOTION TO MODIFY SCHEDULING ORDER 7 Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P. 8 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations, 9 Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the 10 modification of a scheduling order must generally show that even with the exercise of due 11 diligence, they cannot meet the requirement of the order. Id. The court may also consider the 12 prejudice to the party opposing the modification. Id. If the party seeking to amend the 13 scheduling order fails to show due diligence the inquiry should end and the court should not 14 grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 15 (9th Cir. 2002). 16 III. DISCUSSION 17 Defendant represents that he intends to file a motion for summary judgment in this case. 18 Defendant requests an extension of time to file a motion for summary judgment because this 19 case is scheduled for a Settlement Conference on November 10, 2016 and could be resolved in 20 its entirety at the Settlement Conference rendering any motion for summary judgment moot. 21 Defendant argues that rather than expending the time and resources preparing and responding 22 to a motion for summary judgment, it would make more sense at this juncture for the parties to 23 focus their efforts on resolving the case at the settlement conference. 24 The Court finds good cause to extend the dispositive motions deadline until after the Plaintiff has not opposed Defendant’s motion. 25 Settlement Conference. 26 dispositive motions deadline shall be extended to December 15, 2016 for all parties to this case. 27 /// 28 /// 2 Therefore, the 1 IV. CONCLUSION 2 Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. 4 5 Defendant’s motion to modify the Court’s scheduling order, filed on August 31, 2016, is GRANTED; and 2. 6 The dispositive motions deadline is extended from October 11, 2016 to December 15, 2016, for all parties to this case. 7 8 9 10 IT IS SO ORDERED. Dated: October 13, 2016 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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